Pro: Today’s census no longer just counts people

OAKLAND, CALIF.  EDITOR’S NOTE: The writer is addressing the question, Is it unconstitutional to fine Americans for not completely filling out the census form?

The Census Bureau’s propaganda machine is in full gear! The news releases and advertisements tell us that the 2010 census is a national “civic event.” By answering just 10 questions in 10 minutes you “help determine how more than $400 billion in federal funds are distributed.” And if you are lucky enough to receive the more intrusive American Community Survey—formerly the census long form—you allegedly assist in everything from job training for veterans to improving education for disabled children.

Oh yes: The Census Bureau also warns that “anyone over 18 years old who refuses or willfully neglects to complete the questionnaire or answer questions posed by census takers” could be fined from $100 to $5,000.

Surprisingly, most Americans seem little concerned about the confidentiality of census data or the nosiness of the GPS-toting census workers. They should be: some of what the government asks is none of the government’s business.

Still, if Americans limit the information they provide to, say, name and address, they would be violating federal statutes and would be subject to penalties. The question remains whether these penalties have been enacted pursuant to Congress’ delegated constitutional powers.

Article I, section 2 of the Constitution states that “Representatives … shall be apportioned among the several States … according to their respective Numbers.” It further requires that “the actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”

During the first census in 1790, assistant marshals listed the name of each head of household and counted people. The marshals did not pry into matters such as personal relationships, ownership status of the dwelling, educational status or health.

Even the Census Bureau concedes that the “first censuses in 1790 and 1800 were ‘simple’ counts of the population that fulfilled the U.S. Constitution’s requirement.”

The modern census, they aver, is a “tool enabling us to better understand the nation’s inhabitants, their pursuits and activities, and needs.”

The text of the Constitution and history teach us that the purpose of the census is to apportion the number of seats in the House of Representatives, which in turn affects the number of electoral votes allotted to each state in the Electoral College. The meaning of “enumeration” is no mystery; it is simply a catalog or list.

A “count” is all that is constitutionally necessary and permitted. It is all that was undertaken by the generation that wrote the Constitution.

To the extent that Congress has authorized fines for anything beyond (1) a person’s refusal to provide his name, and (2) actions designed to frustrate the count, Congress has exceeded the boundaries of the Constitution.

In the words of James Madison, “the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”

It follows that if the power to conduct a census is limited to counting the population, Congress lacks the power to criminalize conduct beyond the scope of that activity, as when it fines Americans who refuse to disclose more than the constitutionally required information.

Of course, Congress might have good reasons for desiring more than a mere enumeration. But it is their burden to make that case to the American people and seek to amend the Constitution.

Until that happens, Congress tears the fabric of our fundamental law when it penalizes people for declining to disclose personal information to the Census Bureau.

William J. Watkins Jr. is a research fellow specializing in constitutional law at The Independent Institute, 100 Swan Way, Oakland, Calif. 94621; Web site: www.independent.org.